Civil action commenced in the Superior
Court Department on September 24, 2014.
The case was heard by John T. Lu, J., and
a motion for attorney's fees and costs was also heard by him.
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Deborah I. Ecker for the defendant.
Anthony S. Augeri for the plaintiff.
The following submitted briefs for amici
Ben Robbins & Martin J. Newhouse for
New England Legal Foundation.
Barry J. Miller, Molly C. Mooney, &
Emily Miller for Northeast Human Resources Association, Inc.
Raven Moeslinger for Massachusetts
Employment Lawyers Association.
On the day the plaintiff, Beth Reuter, was discharged from employment,
the city of Methuen (defendant or city) owed her $8,952.15 for accrued vacation
time. Rather than pay this amount on the
day of her termination, as required by the Wage Act, G. L. c. 149,
§ 148 (Wage Act or act), the defendant paid her three weeks later. After a demand from the plaintiff's lawyer
over a year after that, the defendant paid the plaintiff a further $185.42,
which represented the trebled interest for the three weeks between the
plaintiff's termination and the payment of the vacation pay. The present suit followed.
The issue is not whether the city violated
the Wage Act in failing to pay the plaintiff for her vacation time on the day
she was fired -- it clearly did. Rather,
the parties dispute the proper measure of damages for the private right of
action for Wage Act violations under G. L. c. 149, § 150, when
the employer pays wages after the deadlines provided in the act but before the
employee files a complaint. Given the
strict time-defined payment policies underlying the Wage Act, and the liquidated
damages provision providing for treble damages for "lost wages and other
benefits," we conclude that an employer is responsible for treble the
amount of the late wages, not trebled interest.
As the prevailing party, the plaintiff is also entitled to attorney's
fees and costs.
Background. a. The plaintiff's termination and procedural
history. The relevant facts are not
disputed by the parties. Reuter worked
as a custodian for the city's school department starting in 1988. In February 2013, the plaintiff was convicted
of larceny over $250 in a single scheme under G. L. c. 266,
§ 30 (1). The defendant sent a
letter formally terminating the plaintiff on March 7, 2013. At the time she was terminated, the plaintiff
had accrued $8,952.15 in unused vacation time.
The defendant sent four separate checks
totaling this amount on March 28, 2013.
The plaintiff unsuccessfully contested her termination before the Civil
Service Commission and appealed to the Superior Court. On March 11, 2014, while that appeal was
pending, the plaintiff's counsel sent the city a demand letter for $23,872.40,
which represented a trebling of the late vacation pay, plus $5,986.10 for
attorney's fees, minus setoff for the late payment. The plaintiff's termination was affirmed by
the Superior Court on April 14, 2014.
Shortly after, on July 24, 2014, the defendant responded to the demand
letter with an "unconditional check" for $185.42, which represented a
trebling of the twelve percent annual interest on the plaintiff's vacation
pay accrued during the three weeks between her termination and payment. The payment was made "without admitting
any liability as to the payment of these wages."
The plaintiff commenced the present action
on September 24, 2014. She asserted an
individual claim for the failure to pay her vacation pay on the day of her
termination, as required by the Wage Act, G. L. c. 149,
§ 148. The plaintiff also alleged
that the city engaged in a practice of failing to pay departing workers on
time, and purported to bring a class claim on behalf of all city employees who
were "involuntarily discharged" or "voluntarily left
employment" in the prior three years.
The defendant unsuccessfully moved to dismiss the complaint under Mass.
R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and then answered the
Following discovery, the plaintiff moved
for class certification on November 8, 2017.
A Superior Court judge denied certification on February 5, 2018, finding
that the plaintiff's Wage Act claims were not suited for class treatment.
The case then proceeded to a bench trial
on the plaintiff's individual claims before a different Superior Court judge on
March 4, 2019. The trial judge issued an
order noting that there were no disputed facts except as related to attorney's
fees, and holding that the plaintiff was only entitled to treble twelve percent
interest for the three-week delay in receiving her vacation pay, which she
had already received.
The judge also found that the plaintiff
was entitled to attorney's fees. The
plaintiff's counsel submitted records showing $75,695.76 in fees and costs,
including $12,610 from the failed attempt to certify a class. Applying the "lodestar" method, the
trial judge determined that the full amount was fair and reasonable, noting that
the defendant had committed a "plain violation of the statute."
Judgment entered on the order. The defendant appealed from the award of
attorney's fees, and the plaintiff cross-appealed from the judge's
determination that she was not entitled to treble lost wages. We court transferred the appeal to this court
on our own motion.
The Wage Act. General Laws
c. 149, § 148, provides that employers must pay their employees
"weekly or bi-weekly" within either six or seven days of the "termination
of the pay period during which the wages were earned." However, "any employee discharged from
such employment," such as the plaintiff, "shall be paid in full on
the day of his discharge." Id. It also defines "wages" to include
"any holiday or vacation payments due an employee under an oral or written
agreement." Id. Combined, these two provisions make clear
that a terminated employee is entitled to all accrued vacation benefits on the
day of discharge. Electronic Data Sys.
Corp. v. Attorney Gen., 454 Mass. 63, 67-68 (2009), citing Attorney General
Advisory 99/1 (1999) ("Like wages, the vacation time promised to an
employee is compensation for services which vests as the employee's services
are rendered. Upon separation from
employment, employees must be compensated by their employers for vacation time
The scope, requirements, and enforcement
mechanisms of the act have varied greatly since it was first enacted, but in
interpreting it, we have always recognized it was intended "for the
protection of employees, who are often dependent for their daily support upon
the prompt payment of their wages."
Commonwealth v. New York Cent. & H.R.R.R., 206 Mass. 417, 424
(1910). See Melia v. Zenhire, Inc., 462
Mass. 164, 171 & nn.6-8 (2012) (describing history of Wage Act and noting
"the Legislature has highlighted [its] fundamental
importance . . . by repeatedly expanding its
protections"). Because of the
potentially severe financial consequences of even a minor violation, the act
not only "protect[s] wage earners from the long-term detention of wages by
unscrupulous employers" (citation omitted), id. at 170, but also
"impose[s] strict liability on employers," who must "suffer the
consequences of violating the statute regardless of intent" (quotation and
citations omitted), Dixon v. Malden, 464 Mass. 446, 452 (2013), quoting Somers
v. Converged Access, Inc., 454 Mass. 582, 592 (2009).
Originally, the Wage Act empowered only
government officials to bring civil or criminal proceedings for
violations. See St. 1887,
c. 399, § 2. Despite strict
liability and the threat of fines, and later even imprisonment, the Legislature
eventually decided, however, that government action alone was insufficient to
enforce the Wage Act. In 1993, the Legislature
enacted the private action provision of § 150, giving an employee the
right to "institute and prosecute in his own name and on his own behalf,
or for himself and for others similarly situated, a civil action for injunctive
relief and any damages incurred, including treble damages for any loss of wages
and other benefits" for violations of § 148 and other labor
laws. St. 1993, c. 110,
§ 182. See Lipsitt v. Plaud, 466
Mass. 240, 246-247 (2013) (1993 act transferred enforcement authority from
Department of Labor and Industries to Attorney General, and "the
Legislature contemporaneously created the private right of action as a means
further to ensure rigorous enforcement of the Wage Act"). The amendment also provided that a prevailing
employee was "entitled to an award of the costs of the litigation and
reasonable attorney fees."
St. 1993, c. 110, § 182.
This provision ensured "rigorous enforcement" of the Wage Act
by encouraging cases to be brought by "private attorneys general"
(citations omitted). Ferman v. Sturgis
Cleaners, Inc., 481 Mass. 488, 494-495 (2019).
We interpreted the treble damages
provision in § 150, as it was phrased in the 1993 act, as punitive damages
limited to cases where the employer's conduct was "outrageous," and
therefore discretionary rather than mandatory.
Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 710 (2005). Three years later, the Legislature further
amended § 150 and other labor laws to expressly provide that the employee
"shall be awarded treble damages, as liquidated damages, for any lost
wages and other benefits."
St. 2008, c. 80, § 5.
Like the equivalent provision of the Federal Fair Labor Standards Act,
the provision of liquidated damages recognized the reality underlying the Wage
Act: that a late-paid worker can face
consequences "so detrimental to maintenance of the minimum standard of
living necessary for health, efficiency and general well-being of
workers . . . that [treble] payment must be made in the event of
delay in order to insure restoration of the worker to that minimum standard of
well-being." George v. National
Water Main Cleaning Co., 477 Mass. 371, 376 (2017), quoting Brooklyn Sav. Bank
v. O'Neil, 324 U.S. 697, 707 (1945).
While these consequential damages can be severe to the worker, they are
also generally "too obscure and difficult of proof for estimate other than
by liquidated damages." George,
supra, quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-584
(1942). Like the rest of the Wage Act,
the liquidated damages provision applies without regard to the employer's
intent. George, supra at 379
(Legislature declined to qualify liquidated damages provision with "good
faith exception" as Congress did for Fair Labor Standards Act).
Discussion. a. Standard of review. Whether the plaintiff was entitled under
G. L. c. 149, § 150, to treble the amount of late-paid wages or
trebling of interest as the trial judge ordered is an issue of statutory interpretation,
which we review de novo. Rosenberg v.
JPMorgan Chase & Co., 487 Mass. 403, 408 (2021). "[A] statute must be interpreted
according to the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or imperfection to be
remedied and the main object to be accomplished, to the end that the purpose of
its framers may be effectuated."
Id. at 414, quoting Harvard Crimson, Inc. v. President & Fellows of
Harvard College, 445 Mass. 745, 749 (2006).
We conclude that the statute calls for treble the amount of late-paid
The private right of action and the remedy. We begin with the express language of the
Wage Act. For discharged employees the
statute is clear and emphatic: "any
employee discharged from such employment," such as the plaintiff,
"shall be paid in full on the day of his discharge." G. L. c. 149, § 148. The statute leaves no wiggle room. Payment, including vacation pay, is to be
made in "full" on the "day" of the discharge. Id. As
explained above, prompt payment of all wages owed is necessary for employees
who often live paycheck to paycheck and who may not be able to pay rent or
other necessities. See George, 477 Mass.
at 376; New York Cent. & H.R.R.R., 206 Mass. at 424. The consequences of late payments may
therefore be severe for such employees.
For all of these reasons, late payments constitute clear violations of the
Employees not paid in full on time may
bring a private action "for injunctive relief, for any damages incurred,
and for any lost wages and other benefits." G. L. c. 149, § 150. Here, we recognize that the word
"lost" creates some ambiguity.
A late payment is not the same as a lost payment. This language, however, must be read with the
over-all context and purpose of the act in mind. The act is directed at prompt payment of
wages. As explained above, any delay may
have severe consequences for employees, and therefore the statute does not
tolerate or in any way condone delay.
Thus, we conclude that "lost wages" encompass all late
payments under the Wage Act.
The remedy is also explicit. The employee "shall be awarded treble
damages, as liquidated damages, for any lost wages and other
benefits." G. L. c. 149,
§ 150. The remedy is thus expressly
focused on trebling the lost wages and other benefits. The remedy is also specifically described as
a liquidated damages remedy. As we
explained in George: "The retention
of a workman's pay may well result in damages too obscure and difficult of
proof for estimate other than by liquidated damages." George, 477 Mass. at 376, quoting Overnight
Motor Transp. Co., 316 U.S. at 583-584.
One amicus claims that imposing treble
damages for late-paid wages would create perverse incentives for employers
because the recovery would be the same whether they quickly corrected the
mistake or let the matter proceed to a lawsuit without paying at all. By imposing strict liability, however, the
Legislature has decided that employers rather than employees should bear the
cost of such delay and mistakes, honest or not.
See George, 477 Mass. at 379; Dixon, 464 Mass. at 452. The Legislature has chosen the stick rather
than the carrot to encourage compliance with the act and to address a history
of nonpayment and wage theft.
We recognize that this rule puts employers
in a difficult position when immediately terminating employees for misconduct
as in the instant case. Because wages
and other benefits are due to employees on the day they are discharged, and it
may be unclear how much an employee must be paid on short notice, employers
would be liable for treble damages if they miscalculated the amount owed.
However, the Legislature appears to have
considered the differences between involuntary discharges and other separations
from employment, and apparently the consequences of differential
treatment. Section 148 expressly
distinguishes between an "employee leaving his employment," who must
"be paid in full on the following regular pay day or, in the absence of a
regular pay day, on the following Saturday," and an "employee
discharged from such employment," who must "be paid in full on the
day of his discharge." In the
former case, the employer does not control when an employee quits and may not
have advance notice. The employee also
controls when he or she leaves and likely has secured replacement employment or
otherwise considered the consequences of a short delay in receiving his or her
pay. Therefore, the act provides a
reasonable grace period for employers to provide the employees' pay, including
vacation pay. In the latter case, the
employer decides if and when to terminate an employee, while the employee has
no control over when it will happen and may not know ahead of time. The Legislature's command is clear: if you choose to terminate an employee you
must be prepared to pay him or her in full when you do so. Electronic Data Sys. Corp., 454 Mass. at
71. This may mean that employees who,
like the plaintiff, have engaged in illegal or otherwise harmful conduct may
have to be suspended rather than terminated for a short period of time until
the employer can comply with § 148.
See Dixon, 464 Mass. at 451 n.6 (invalidating ordinance that withheld
vacation payments to employees terminated for "fault" as inconsistent
with § 148); Knous v. Broadridge Fin. Solutions, Inc., 991 F.3d 344,
345-346 (1st Cir. 2021) (employee was not discharged for purposes of Wage Act
when he was told to leave office and to stop all work, but rather on day that
his pay and benefits ended).
Interest. Finally, we address the
trial judge's conclusion that interest is the proper measure of damages for
late payment of wages. The problem with
this interpretation is that it is unsupported by the language of the statute
and inconsistent with its purpose.
There is no language in § 150 in any
way suggesting that the payment of interest is the proper remedy for violation
of the act. While we have considered
whether twelve percent prejudgment statutory interest is appropriate under
G. L. c. 231 § 6B, 6C, or 6H, when back pay is awarded under the
Wage Act, see George, 477 Mass. 371, an award of interest under all these
statutes is in addition to an award to the claimant, and does not provide the
primary source of recovery.
Awarding only interest for late payment is
also inconsistent with the fundamental purpose of the act. As explained above, the statute expects and
demands the prompt payment of wages to employees who rely on such payments
"to pay for the family's housing, transportation, food and clothing,
tuition, and medical expenses."
George, 477 Mass. at 380. Much
more is therefore at stake than the loss of the time value and depreciation of
sums owed. These damages are likely to
be concentrated in the immediate aftermath of their nonpayment, when the
employee has not had a chance to secure replacement income and expenses
incurred in reliance on the payments come due.
The idea that interest is an appropriate remedy
for late payments derives from an influential trial court decision: Dobin vs. CIOview Corp., Mass. Sup. Ct., No.
2001-00108 (Middlesex County Oct. 29, 2003).
In that case, the trial court drew a negative inference from a single
sentence in § 150: "The
defendant shall not set up as a defen[s]e a payment of wages after the bringing
of the complaint." Id. The trial court concluded that this sentence
created a partial defense by negative implication for precomplaint payments of
late wages. Id. See Clermont v. Monster Worldwide, Inc., 102
F. Supp. 3d 353, 357-359 (D. Mass. 2015); Littlefield vs. Adcole Corp., Mass.
Sup. Ct., No. ESCV201500017 (Essex County June 18, 2015).
We conclude that this interpretation is
incorrect. We interpret this particular
provision simply to mean what it expressly states: the defendant shall not set up as a defense
the payment of wages after the filing of a complaint. The sentence at issue is also preceded by a
sentence that directly addresses defenses generally, stating that "no
defen[s]e for failure to pay as required . . . shall be
valid" except "the attachment of such wages by trustee process or a
valid assignment thereof or a valid set–off against the same, or the absence of
the employee from his regular place of labor at the time of payment, or an
actual tender to such employee at the time of payment of the wages so earned by
him" (emphases added). G. L.
c. 149, § 150.
We decline to adopt the negative
implication drawn by the Dobin court for a number of reasons. As a preliminary matter, "the maxim of
negative implication -- that the express inclusion of one thing implies the
exclusion of another -- 'requires great caution in its application.'" Halebian v. Berv, 457 Mass. 620, 628 (2010),
quoting 2A N.J. Singer & J.D. Shambie Singer, Sutherland Statutory
Construction § 47.25, at 429 (7th ed. 2007).
"[T]he maxim will be disregarded where its application would thwart
the legislative intent made apparent by the entire act." Halebian, supra, quoting 2A N.J. Singer &
J.D. Shambie Singer, Sutherland Statutory Construction, supra at § 47.25, at
433–435. See Commonwealth v. Garvey, 477
Mass. 59, 65 (2017).
Also, the negative implication that was
drawn in the trial court decisions and that the defendant seeks to draw here
does not in any way support the payment of interest. As explained above, interest is not in any
way mentioned in the statute.
Additionally, if the sentence were to provide a defense to payment by
negative implication, it should logically provide a total defense, not a
partial defense that allows for the recovery of interest.
More importantly, a reading of § 150
allowing a defense for late payments made before litigation is commenced would
essentially authorize, and even encourage, late payments right up to the filing
of a complaint. As many, if not most,
terminated employees lack the financial and other wherewithal to hire lawyers,
it would appear to encourage nonpayment as well as late payment. Thus, the entire purpose and thrust of
§ 148 and § 150 cut against this interpretation.
For all these reasons, we choose not to
read more into the sentence at issue than what it expressly states.
Response to concurrence. Although
the issue was not raised, briefed, or argued by any party or amicus in this
case, or raised as a possibility in any of the cases of which we are aware,
Justice Georges suggests in his concurrence that other plaintiffs may be
entitled to recover not only treble lost wages as liquidated damages but also
other damages incurred. Indeed, from the
time the plaintiff sent her pre-action demand letter to the city, she has
consistently claimed that the proper remedy is simply treble the amount of
late-paid wages, and the action proceeded for seven years through trial on that
understanding. The concurrence thus seeks essentially to opine on an issue that
has not been raised or in any way decided here without the benefit of any
briefing. This we decline to do.
Attorney's fees. Our disposition
of the plaintiff's cross appeal makes our consideration of the defendant's
appeal significantly simpler; the plaintiff has established that prevailing
employees are entitled to treble the amount of late wages, not just treble
interest as found by the trial judge.
This is a significant victory and an important clarification of existing
law. The plaintiff is now clearly the
"prevailing" party for the purposes of recovering attorney's fees and
costs under § 150.
The one remaining issue is whether the
plaintiff should receive all her fees and costs stemming from the unsuccessful
efforts to certify a class, considering that the motion for class certification
was denied and the plaintiff did not appeal.
See Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132,
151-153 (2d Cir. 2008) (affirming reduction of attorney's fees and costs to
plaintiff who succeeded on individual Fair Labor Standards Act claim but failed
to certify collective action); Cullens v. Georgia Dep't of Transp., 29 F.3d 1489,
1494-1495 (11th Cir. 1994) (holding successful plaintiffs were not
"catalyst" for benefits to class where class certification had been
denied). But see Davis v. Board of Sch.
Comm'rs of Mobile County, 600 F.2d 470, 475 (5th Cir. 1979), modified, 616 F.2d
893 (5th Cir. 1980) (instructing lower court to consider fact that "the
plaintiffs have performed a valuable service for the
class . . . which they sought to represent" in
determining fees and costs); Baker v. John Morrell & Co., 263 F. Supp. 2d
1161, 1197-1198 (N.D. Iowa 2003), aff'd, 382 F.3d 816 (8th Cir. 2004) (holding
fees incurred on unsuccessful class certification effort were recoverable
because, at time complaint was filed, "plaintiff's counsel reasonably
believed that a class action was a viable and efficient means of
addressing" violations). The trial
judge did not address this issue in his order granting all of the plaintiff's
fees and costs, and we have neither the record nor the briefing necessary to
decide this question. We therefore remand
to the trial court the question whether the plaintiff is to be compensated for
some or all of her attorney's fees for the unsuccessful legal work performed
regarding class certification, and for an explanation by the trial judge of his
exercise of discretion in deciding this question.
Conclusion. The statutory
language and purpose of the Wage Act require prompt payment of wages and the
trebling of those wages as liquidated damages when they are paid late. The remedy for late payment is therefore not
the trebling of interest payments on those wages as found by the trial judge,
but the trebling of the late wages. As
the plaintiff is the prevailing party, she is also entitled to attorney's fees,
subject to reconsideration of the fees related to class certification as
provided in this decision. The case is
remanded for further proceedings consistent with this opinion.
GEORGES, J. (concurring). I agree with the court's conclusion that
late-paid wages are "lost wages" for purposes of the Wage Act. I write separately, however, to express my
concern that the court's opinion mistakenly may imply that employees suing for
"lost wages and other benefits" may not also sue for "any
damages incurred." G. L.
c. 149, § 150. While the
employee's complaint in this case did not implicate the relationship between
the Wage Act's liquidated damages clause and its authorization of suit for
"any damages incurred," parts of the court's opinion nonetheless
could be understood as addressing, and settling, that issue in a manner that
subsumes the latter provision into the former.
In explaining why the employee, Beth
Reuter, is entitled to treble her entire late-paid wages, and not merely treble
the forgone interest on those wages, the court asserts that "consequential
damages" are "generally 'too obscure and difficult of proof for
estimate other than by liquidated damages.'" Ante at . Shortly thereafter, it uses the same
quotation in a slightly different context.
The quotation the court relies upon is from George v. National Water
Main Cleaning Co., 477 Mass. 371, 376 (2017).
In that case, we answered a certified question from the United States
District Court for the District of Massachusetts as to whether statutory
prejudgment interest (under G. L. c. 231, § 6B or 6C) could be
added to an award of "liquidated (treble) damages" under G. L.
c. 149, § 150. See George,
supra at 372. In holding in George
that prevailing plaintiffs could be awarded both liquidated damages and
statutory prejudgment interest, however, we did not address the relationship
between the Wage Act's provision on liquidated damages and its authorization of
suit for "any damages incurred."
Nonetheless, I believe that many workers reasonably could understand the
court's opinion as now implying that, in vindicating Wage Act rights, workers
may be awarded only one type of monetary relief, or, put another way, that the
act's liquidated damages clause effectively swallows its authorization of suit
for "any damages incurred."
General Laws c. 149, § 150,
provides that a worker who suffers a violation of the Wage Act may commence
"a civil action for injunctive relief, for any damages incurred, and for
any lost wages and other benefits."
An employee who prevails on such a claim "shall be awarded treble
damages, as liquidated damages, for any lost wages and other benefits and shall
also be awarded the costs of the litigation and reasonable attorneys'
fees." Id. The Legislature therefore seemingly has made
two distinct choices in its formulation of G. L. c. 149, § 150,
authorizing complaints "for any damages incurred, and for any lost wages
and other benefits" (emphasis added), meaning that an aggrieved worker
apparently may choose to sue for both.
The Legislature also did not include the words "any damages
incurred" in the liquidated damages clause, which provides only that
successful plaintiffs "shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits and shall also be awarded
[attorney's fees]" (emphasis added).
Had the Legislature intended that the
liquidated damages clause cover all possible damages, including "any
damages incurred," it could have signaled that in several ways. Instead, the Legislature placed the phrase
"any damages incurred" in a separate provision, apart from the
provision on liquidated damages, and we cannot regard that choice as
meaningless. See Rowley v. Massachusetts
Elec. Co., 438 Mass. 798, 802 (2003) ("If that was the legislative intent,
the wording of the statute could have easily reflected it. It does not" [footnote omitted]).
General Laws c. 149, § 150,
moreover, applies to far more than just G. L. c. 149, § 148, the
substantive section of the Wage Act; it facilitates the vindication of rights
created by a host of other statutes, many of which do not directly concern
wages. See, e.g., G. L.
c. 149, § 150 (authorizing suit for, inter alia, violations of
Domestic Violence and Abuse Leave Act, G. L. c. 149, § 52E;
section regulating behavior of staffing agencies, G. L. c. 149,
§ 159C; and provision entitling public employees to serve as organ donors
without penalty from their employers, G. L. c. 149, § 33E). For example, an employee suing a staffing
agency for "knowingly issu[ing] . . . false, fraudulent
or misleading information," see G. L. c. 149,
§ 159C (e) (1), might have suffered lost wages as the result of
the employer's actions. But such a
plaintiff well might have suffered other harm as a result of that fraud. Nowhere does G. L. c. 149, § 150,
state or suggest that such an employee could not also then sue for "any
damages incurred"; the provision simply says that employees may commence
"a civil action for injunctive relief, for any damages incurred, and for
any lost wages and other benefits."
Reading the consequential damages
provision out of G. L. c. 149, § 150, would harm vulnerable
workers in two primary ways: by making
the likelihood of being made whole by a Wage Act suit dependent on the amount
of one's lost wages, and by creating incentives for employers to be less
attentive to the prompt payment of lower-income workers.
If workers who seek recompense for
"lost wages and other benefits" may not also do so for "any
damages incurred," their damages will be capped at treble their late-paid
wages. This would mean that many workers
who face catastrophe due to an employer's withholding of wages would have
virtually no chance of being made whole by a Wage Act complaint. For example, a late paycheck could lead to
missed mortgage payments and foreclosure on one's home, missed tuition payments
and subsequent disenrollment, or significant health issues stemming from an
inability to pay for crucial medication.
Without the ability to sue for consequential damages, compensation for
Wage Act plaintiffs would correspond not to the harm they had suffered, but
simply -- and solely -- to the size of their paychecks. That cannot be what the Legislature intended;
as the court notes, we have "always recognized" that the Wage Act
"was intended 'for the protection of employees, who are often dependent
for their daily support upon the prompt payment of their wages'" (citation
omitted). Ante at .
Moreover, if workers who suffer lost wages
could not also sue for "any damages incurred," G. L.
c. 149, § 150, would create perverse incentives for employers to be
far more attentive to the prompt payment of higher-earning employees. Take, for example, a situation in which an
unscrupulous employer realizes that a terminated employee has not been paid on
time, but also is aware that this employee might file a complaint only for
"lost wages and other benefits," and not for consequential
damages. The employer could well decide
to withhold payment in the hope that the employee lacked the wherewithal or
resources to file a complaint; after all, aside from possible attorney's fees,
the employer's liability would be roughly the same (i.e., treble the late
paycheck), regardless of whether the employee was paid immediately or only
after months or years of litigation. In
purely economic terms, the less that employee earned, the more rational taking
such a risk would be.
Here, Reuter did not seek damages for
"any damages incurred"; her complaint asserted only the violation of
the requirement in G. L. c. 149, § 150, of timely payment of
wages due to terminated employees. The
question before the court thus was the proper measure of damages for wages paid
late, but before an employee files a complaint seeking damages for "lost wages
and other benefits," and I wholeheartedly join the court's resolution of
that issue. I write separately to point
out that, despite language in the court's opinion that may suggest that the
court, sub silentio, has decided whether employees suing for, and receiving,
damages for "lost wages and other benefits" may not also sue for
"any damages incurred," the court has not done so in this case. For reasons I have touched upon in this
concurrence, I read G. L. c. 149, § 150, to permit employees to
seek two separate forms of relief, based both on the language used in the
statute and on the clear legislative purpose of the Wage Act, which fully
supports this reading. But at a minimum,
this remains an unresolved issue for the court to address in a different case,
where that issue is raised directly.
 We acknowledge the amicus briefs
submitted by the New England Legal Foundation; Northeast Human Resources
Association, Inc.; and the Massachusetts Employment Lawyers Association.
 The letter did not explain why this
was the proper interest rate.
 The plaintiff did not appeal from the
denial of class certification.
 Again, why this rate was selected was
not explained, although it appears to have been stipulated to by the
parties. It did not represent statutory
prejudgment interest, which the clerk determined to be zero dollars given the
plaintiff's failure to recover damages.
 Government enforcement remains a vital
part of the act and is now entrusted to the Attorney General under the first paragraph
of G. L. c. 149, § 150.
Section 148 itself provides that violators "shall be punished or
shall be subject to a civil citation or order as provided in [§] 27C." Section 27C imposes various punishments,
including fines and imprisonment, the degree of which depends on whether the
violator acted willfully and whether the violator is a repeat offender. As we have recognized, "[t]he Attorney
General's right to enforce G. L. c. 149 and the right of private
citizens to enforce provisions of that chapter represent parallel and distinct
enforcement mechanisms." DePianti
v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 612 (2013).
 This is especially true of discharged
employees, who have not planned or otherwise agreed to the termination of their
 This is borne out by the history of
the provision. The Legislature added the
language establishing the alleged defense in 1891. St. 1891, c. 239, § 2. At the time, there was no private right of
action, and the act was enforced by the "chief of the district police, or
any state inspector of factories and public buildings." St. 1887, c. 399, § 2. Whatever the Legislature intended in 1891 by
providing that postcomplaint payment was not a defense to prosecution by
government officials, it could not, as the trial court in the Dobin decision
stated, have created a partial defense to the treble damages provision or
intended to address the amount of damages recoverable under the private right
of action, none of which existed until over a century later. St. 1993, c. 110, § 182.
 The plaintiff has requested appellate
attorney's fees in her brief. See Fabre
v. Walton, 441 Mass. 9, 10 (2004). As
the prevailing party in this appeal, the plaintiff is "statutorily
entitled to recover reasonable appellate attorney's fees and costs" under
the Wage Act. Ferman, 481 Mass. at
496-497, quoting Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 132 (2014). Therefore, the plaintiff "may file a
request for appellate attorney's fees and costs with this court." Ferman, supra at 497.
footnotes for concurring
 General Laws c. 149, § 150,
provides that an "employee claiming to be aggrieved by a violation of
[G. L. c. 149, §§ 33E, 52E, 148, 148A, 148B, 148C, 150C, 152,
152A, 159C, or 190,] or [G. L. c. 151, § 19,]
may . . . institute and prosecute in his own name and on his own
behalf, or for himself and for others similarly situated, a civil action for
injunctive relief, for any damages incurred, and for any lost wages and other
benefits" (emphasis added).